The opinion of the court was delivered by: MEANOR
On July 15, 1980, the United States Nuclear Regulatory Commission (hereinafter referred to as "NRC", "Commission" or "AEC"
), through the Attorney General, brought suit, pursuant to section 234(c) of the Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2282(c), to collect penalties amounting to $ 4050 imposed upon Radiation Technology, Inc. (hereinafter referred to as "RTI"), for alleged violations of certain agency regulations and license conditions. The matter is presently before the court on both parties' motions for summary judgment. Since this case presents several issues heretofore unresolved by any federal court,
I reserved decision after oral argument on the motions so as to render a formal opinion on these issues of national importance. These issues concern the jurisdiction of the district court to entertain this action as well as the scope of judicial review to be employed if the action is properly before a district court. For the reasons set forth below, I hold that the district court does have jurisdiction over this action. I also hold that in a section 234(c) collection action the defendant is entitled to a trial de novo. However, since both parties have moved for summary judgment, a review of the administrative record and the affidavit submitted by plaintiff, persuades me that no trial is necessary in the instant matter. I will grant the NRC's motion and enter an order directing the defendant to pay certain of the assessed penalties.
II. FACTS AND PROCEDURAL HISTORY
The Atomic Energy Act of 1954, as amended, (hereinafter referred to as the "Act") gave the AEC authority, inter alia, to regulate nuclear power. Included within this grant of authority was responsibility for licensing and regulating the possession and use of "byproduct material", i. e., radioactive materials used in industrial applications, medical diagnosis and treatment and applied research and development. 42 U.S.C. §§ 2014(e), 2111. To effectuate the purposes of the Act, the AEC was authorized to promulgate "standards and instructions to govern the possession and use of ... byproduct materials." 42 U.S.C. § 2201(b). The Commission exercised this authority and promulgated a variety of regulations.
The possession and use of byproduct material is authorized in most circumstances only under license from the Commission. 42 U.S.C. § 2111. Byproduct material licensees are subject to the provisions of the Act and the general rules, regulations and orders of the Commission, as well as any license-specific terms and conditions imposed on the licensee by the Commission. 42 U.S.C. § 2233; 10 C.F.R. § 30.34. The Commission attempts to monitor compliance by the licensees through a system of required tests, licensee reports, record-keeping requirements and on-site inspections by Commission representatives. 10 C.F.R. § 30.34(e)(4).
Once a transgression has occurred, the Commission is authorized to take certain actions against the licensee. Depending upon the severity of the transgression, the Commission may invoke any number of sanctions. These include: (1) the issuance of a Notice of Violation, 10 C.F.R. § 2.201; (2) the imposition of civil penalties, 10 C.F.R. § 30.63; (3) the issuance of an order modifying, suspending or revoking the license, 10 C.F.R. §§ 2.202, 2.204; and/or (4) the withholding or recalling of the byproduct material, 10 C.F.R. § 30.62. Where necessary or appropriate, the Commission may seek judicial assistance to collect a penalty, 42 U.S.C. § 2282(c), or obtain an injunction, 42 U.S.C. § 2280. Finally, where violations are willful the Commission may seek criminal sanctions of up to $ 5000, two years imprisonment, or both. 42 U.S.C. § 2273.
A. Imposition of Civil Penalties.
The Act provides that any person who violates an applicable statutory provision, regulatory requirement or license condition of any material byproduct license is subject to a civil penalty of up to $ 5000 for each violation. The Act also mandates certain procedures be utilized by the Commission for the valid exercise of this authority. Additionally, the Act empowers the Commission to institute a civil action to collect the penalty imposed. Specifically, section 234 of the Act states:
(a) Any person who (1) violates any licensing provision of section 2073, 2077, 2092, 2093, 2111, 2112, 2131, 2133, 2134, 2137, or 2139 of this title or any rule, regulation, or order issued thereunder, or any term, condition, or limitation of any license issued thereunder, or (2) commits any violation for which a license may be revoked under section 2236 of this title, shall be subject to a civil penalty, to be imposed by the Commission, of not to exceed $ 5,000 for each such violation: Provided, That in no event shall the total penalty payable by any person exceed $ 25,000 for all violations by such person occurring within any period of thirty consecutive days. If any violation is a continuing one, each day of such violation shall constitute a separate violation for the purpose of computing the applicable civil penalty. The Commission shall have the power to compromise, mitigate, or remit such penalties.
(b) Whenever the Commission has reason to believe that a person has become subject to the imposition of a civil penalty under the provisions of this section, it shall notify such person in writing (1) setting forth the date, facts, and nature of each act or omission with which the person is charged, (2) specifically identifying the particular provision or provisions of the section, rule, regulation, order, or license involved in the violation, and (3) advising of each penalty which the Commission proposes to impose and its amount. Such written notice shall be sent by registered or certified mail by the Commission to the last known address of such person. The person so notified shall be granted an opportunity to show in writing, within such reasonable period as the Commission shall by regulation prescribe, why such penalty should not be imposed. The notice shall also advise such person that upon failure to pay the civil penalty subsequently determined by the Commission, if any, the penalty may be collected by civil action.
(c) On the request of the Commission, the Attorney General is authorized to institute a civil action to collect a penalty imposed pursuant to this section. The Attorney General shall have the exclusive power to compromise, mitigate, or remit such civil penalties as are referred to him for collection.
42 U.S.C. § 2282 (amended in 1980).
The procedure actually adopted by the Commission for administrative imposition civil penalties goes beyond the requirements of the statute. The Commission provides an opportunity for a full adjudicatory consideration of all relevant facts prior to the imposition of any penalty. 10 C.F.R. § 2.205. The licensee is advised in writing of all the following elements of the alleged violation: (1) the dates, facts and nature of each alleged item of noncompliance; (2) the specific statutory provision, regulatory requirement or license condition alleged to have been violated; and (3) the amount of the proposed penalty. The licensee is also apprised of its right to respond in writing to the notice and provide any information it deems relevant. If the licensee avails itself of this opportunity, the Director of the Office of Inspection and Enforcement (Director) is to consider the response before imposing, mitigating, remitting or dismissing the penalty. If the licensee remains dissatisfied with the Director's response, it may request a hearing before the Commission or the Commission's designee. As a rule of practice, the hearing is before an administrative law judge (ALJ), 10 C.F.R. § 2.704(a), with the licensee afforded the full panoply of rights required under the Administrative Procedure Act, 5 U.S.C. § 554. 10 C.F.R. § 2.700 et seq. Appeals from the initial decision of the ALJ may be taken as of right to an Atomic Safety and Licensing Appeal Board (Appeal Board), the Commission's designee in matters involving, inter alia, civil penalties. 10 C.F.R. § 2.785(a). Finally, if the decision of the Appeal Board is erroneous with respect to an important question of fact, law or policy, the Commission will review the matter on its own motion or upon a petition of a party. 10 C.F.R. § 2.786. Upon the exhaustion of these administrative procedures and upon the expiration of ten days from the date of service of notice of final Commission action, the Commission is authorized to refer the matter to the Attorney General for collection. 42 U.S.C. § 2282(c); 10 C.F.R. § 2.205(h).
B. Procedures Employed Against RTI.
At all relevant times, RTI was the holder of Byproduct Material License No. 29-13613-02. RTI operates a facility in Rockaway, New Jersey, described as a commercial irradiator which utilizes cobalt-60, a byproduct material within the meaning of 42 U.S.C. § 2014(e).
On October 23, 1975, Commission personnel conducted a routine inspection of RTI's facility. A pool water sample taken by the inspector revealed an elevated level of cobalt activity in the irradiator (R & D) pool. RTI linked the activity to a "suspect pencil with a loosened endcap" which had been sealed in a pipe and stored at the bottom of the pool. A follow-up inspection was conducted on June 18, 1976. As a result, a second Notice of Violation was issued to RTI, alleging, inter alia, a failure to comply with the requirements of 10 C.F.R. § 20.207 in that the licensee failed to maintain constant surveillance and immediate control of licensed material stored in an unrestricted area. In its response of July 12, 1976, RTI did not contest the violation.
On October 27, 1976, at approximately 7:30 a.m., representatives of the Commission conducted an unannounced inspection of RTI's facility. One of RTI's employees accompanied the inspectors during the initial phases of the inspection. Interviews with employees, review of records and a survey of the facility revealed a series of apparent violations of Commission regulations and license conditions. On November 1, 1976, inspectors from the Commission returned to RTI's facility to make follow-up surveys and record inspections. These activities also revealed several additional apparent violations of the regulations and license conditions.
Based upon the reports resulting from the inspections of October 27 and November 1, 1976, the Director issued on January 5, 1977, a Notice of Violation, alleging nine items of noncompliance with both regulatory requirements and license conditions.
A Notice of Proposed Imposition of Civil Penalty was included with the Notice of Violation.
On January 31, 1977, RTI responded in writing by denying that some of the items of noncompliance had occurred and arguing that extenuating circumstances warranted the withdrawal of the civil penalties. After the Director considered RTI's response, he issued an Order Imposing Civil Penalties on March 4, 1977. RTI requested and the Commission provided a hearing on the matter before an ALJ. Eight days of hearings were held in Morristown, New Jersey, concluding on June 1, 1978.
On November 24, 1978, the ALJ issued his initial decision. He dismissed items 4 and 5 for failure of proof, found items 1 to 3 and 6 to 9 to be supported by substantial evidence and imposed penalties in the amount of $ 3,300. Both parties sought review by the Appeal Board. On October 16, 1979, the Appeal Board issued its decision affirming the ALJ's decision on all items of noncompliance with the exception of item 5. As to this item, the Appeal Board reversed the ALJ's dismissal of the item for failure of proof, finding that the ALJ applied an improper legal standard. Accordingly, the Appeal Board assessed civil penalties in the amount of $ 4,050.
On November 2, 1979, RTI filed a Petition for Review with the Commission. The Commission failed to exercise its discretion to review the decision of the Appeal Board within the time provided by the regulations as extended. Therefore, the petition was deemed to have been denied. By letter dated January 15, 1980, the Director requested payment of the $ 4,050 penalty. The licensee's response, dated January 24, 1980, did not enclose the payment as required. Accordingly, the instant suit was started.
In its answer, RTI denied the material allegations of the complaint.
In particular, RTI denied the validity of any of the determinations of noncompliance made by NRC. As an affirmative defense, RTI sought review of the order of the NRC which imposed civil penalties, denying that it violated any regulations.
RTI also asserted that the inspection of its facilities "was in violation of the rules and regulations of the Commission. Such inspection was illegal and void and the fruits thereof were inadmissible as evidence in the Commission's proceedings." Answer at 2.
A. Jurisdiction of the District Court.
It is the position of the plaintiff that jurisdiction in this collection action rests with the district court under 28 U.S.C. §§ 1337, 1345, and 1355. The NRC does, however, note that one exception to the district court's jurisdiction does exist, i. e., review of civil penalty orders imposed as a result of, during or in furtherance of any proceeding under 42 U.S.C. § 2239 to grant, suspend, revoke or amend a license. The NRC asserts that by virtue of 28 U.S.C. § 2342(4) jurisdiction is vested in the Circuit Court of Appeals in those license/penalty actions. The NRC contends that these civil penalty orders, as collateral or ancillary orders to the license review proceeding, fall within the jurisdictional parameters of 42 U.S.C. § 2239.
In contrast to these arguments, RTI contends that "what the Government has characterized as the "exception' is the general rule, namely, that exclusive jurisdiction for review of any final order of the NRC for a civil penalty or otherwise, lies with the circuit court of appeals." RTI's Brief at 7. Defendant's argument is premised on Congress' use of extremely broad language in 42 U.S.C. § 2239. RTI refers the court to several circuit cases which have interpreted 42 U.S.C. § 2239 in a broad manner somewhat analogous to the interpretation sought by RTI. Natural Resources Defense Council, Inc. v. Nuclear Regulatory Comm'n, 196 U.S. App. D.C. 354, 606 F.2d 1261 (D.C.Cir.1979); Virginia Electric & Power Co. v. Nuclear Regulatory Comm'n, 571 F.2d 1289 (4th Cir. 1978); Honicker v. Hendrie, 465 F.Supp. 414 (M.D.Tenn.), appeal dismissed, 605 F.2d 556 (6th Cir. 1979), cert. denied, 444 U.S. 1072, 100 S. Ct. 1015, 62 L. Ed. 2d 753 (1980).
The court's analysis of this issue must begin with the plaintiff's asserted jurisdictional bases. Chapter 85 of Title 28 contains numerous statutory grants of jurisdiction to the district court which are applicable to the instant matter. 28 U.S.C. § 1337 states that "(t)he district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce...." This jurisdictional grant was recognized in Drake v. Detroit Edison Co., 443 F.Supp. 833 (W.D.Mich.1978), as the proper basis for the district court's exercise of jurisdiction in certain actions commenced under the Atomic Energy Act. In Drake, the district court indicated "(it) is well established ... that that statute, the Atomic Energy Act, was passed pursuant to Congress' power to regulate commerce, see 1964 U.S.Code Cong. & Admin.News, p. 3111, thus making 28 U.S.C. § 1337 the applicable jurisdictional provision." 443 F.Supp. at 836; see 13 C. Wright & A. Miller, Federal Practice and Procedure § 3574. Equally applicable is the jurisdictional grant contained in 28 U.S.C. § 1345. That section provides that "(except) as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress." 28 U.S.C. § 1345; 14 C. Wright & A. Miller, supra, § 3651. It is undisputed that the NRC is an agency of the United States suing to vindicate a specific federal statutory right. It is also clear that the NRC is "expressly authorized to sue by Act of Congress." That authorization is set forth in section 234 of the Atomic Energy Act, as amended. 42 U.S.C. § 2282. The only difficulty that arises is defendant's contention, albeit by indirection, that 28 U.S.C. § 2342(4) is a specific jurisdictional grant to the Court of Appeals within the meaning of the first clause of 28 U.S.C. § 1345.
The Administrative Orders Review Act, in pertinent part, provides:
The court of appeals has exclusive jurisdiction to enjoin, set aside, suspend (in whole or in part), or to determine the validity of
(4) all final orders of the Atomic Energy Commission made reviewable by section 2239 of title 42;
28 U.S.C. § 2342(4). Section 2239 of title 42 states:
(a) In any proceeding under this chapter, for the granting, suspending, revoking, or amending of any license or construction permit, or application to transfer control, and in any proceeding for the issuance or modification of rules and regulations dealing with the activities of licenses, and in any proceeding for the payment of compensation, an award or royalties under section 2183, 2187, 2236(c) or 2238 of this title, the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, ...
(b) Any final order entered in any proceeding of the kind specified in subsection (a) of this section shall be subject to judicial review in the manner prescribed in the Act of December 29, 1950, as amended, and to the provisions of section 10 of the Administrative Procedure Act, as amended.
42 U.S.C. § 2239. The present equivalent of the Act of December 29, 1950, as amended, is the Administrative Orders Review Act, 28 U.S.C. §§ 2341 to 2351. Fortunately, the Third Circuit has addressed the issue of its jurisdiction under this statute.
In Citizens for a Safe Environment v. Atomic Energy Comm'n, 489 F.2d 1018 (3d Cir. 1974), the petitioners sought review in the Circuit Court of an order of the AEC denying them financial assistance. The petitioners were intervenors in a proceeding before the AEC for the granting of a facility operating license for a nuclear electric energy generating station filed by several utility companies. After a review of the Administrative Orders Review Act and 42 U.S.C. § 2239, the Third Circuit, through Judge Gibbons, explained:
Thus, if the order denying petitioners' motion for $ 30,000 is a final order entered in a § 2239 licensing proceeding, it is reviewable here, and not elsewhere. If it is not such an order, it is not reviewable here in the first instance, but may be reviewable, pursuant to the Administrative Procedure Act and under some other jurisdictional statute, in a district court.
485 F.2d at 1020. The test articulated by the Court to resolve this issue "has two aspects: (1) is the order one entered in a proceeding of the kind specified in § 2239(a), and (2) assuming it is of that kind, is it final." Id.
An application of the jurisdictional test utilized by the Third Circuit in Citizens to the present case clearly indicates that an action for the collection of civil penalties is properly brought before the district court, not the Court of Appeals. The first prong of the Citizens test simply cannot be satisfied. Proceedings under subsection (a) of 42 U.S.C. § 2239 are those that deal with the Commission's exercise of licensing and rule-making authority. See Siegel v. Atomic Energy Comm'n, 130 U.S. App. D.C. 307, 400 F.2d 778, 785 (D.C.Cir.1968). Contrary to the assertion of the defendant, the Commission in this matter was not exercising either of these powers. Rather, it was exercising a third and distinct authority conferred upon it under section 234. No reference is made in 42 U.S.C. § 2239 to section 234.
It is apparent that the absence of any reference to section 234 in 42 U.S.C. § 2239 was an intentional omission by Congress. Congress has established a different procedure which must be employed by the Commission when it seeks to collect a civil penalty rather than suspend or revoke a license. The legislative history of section 234 of the Atomic Energy Act, as amended, 42 U.S.C. § 2282, shows that the draftsmen intended the collection action be commenced in the district court. For a detailed discussion of the legislative history of section 234, see 1279-1283 infra. Furthermore, the absence of any reference to the jurisdiction of the Court of Appeals in section 234 collection actions militates against that court's exercise of jurisdiction and favors the exercise of jurisdiction by this court. 16 C. Wright & A. Miller, supra, § 3943, at 323-24.
The cases cited by RTI for a contrary interpretation of 28 U.S.C. § 2342(4) are inapposite. In Natural Resources Defense Council, Inc. v. Nuclear Regulatory Comm'n, 196 U.S. App. D.C. 354, 606 F.2d 1261 (D.C.Cir.1979), the Circuit Court reviewed the district court's determination that it had jurisdiction to review determinations of the NRC and Energy Research and Development Administration (ERDA) that the NRC need not license certain storage tanks under section 202(4) of the Energy Reorganization Act of 1974, 42 U.S.C. § 5842(4), and that the ERDA need not prepare an environmental impact statement for the tanks under section 102(2)(C) of the National Environmental Policy Act of 1969, 42 U.S.C. § 4332(2)(C). With respect to the district court's jurisdiction to review the NRC determination, the Circuit Court considered the question "whether the order was "entered in a proceeding' for "the granting ... of any license.' " 606 F.2d at 1265. In concluding that the NRC's decision was such an order, the Circuit Court reasoned:
In the circumstances of this case, the absence of an application for a license is not dispositive. Since a licensing jurisdiction determination is a necessary first step in any proceeding for the granting of a license, we hold that NRC's decision was "entered in a proceeding" for "the granting ... of any license."
For the foregoing reasons, we hold that exclusive jurisdiction to review NRC's determination rests in the courts of appeals. The district court erred in reviewing NRC's licensing decision on the merits.
Id. at 1265-66 (footnotes omitted). Clearly, the Court's characterization of the NRC's actions as "a licensing jurisdiction determination" and "licensing decision" distinguishes Natural Resources from the present matter, i. e., a civil penalty action. Defendant's contention that the imposition of a civil penalty is a predicate to a license suspension or revocation does not convert the agency's former action into the later. Defendant itself has the ability to remove this predicate by compliance with the agency's regulations and its license conditions. The fact that it decides not to conform should not be and is not a factor which affects the jurisdiction of this court.
Likewise, the case of Virginia Electric & Power Co. v. Nuclear Regulatory Comm'n, 571 F.2d 1289 (4th Cir. 1978), does not support defendant's position. In that case Virginia Electric & Power Co. (VEPCO) petitioned the Court of Appeals for review of an order of the NRC imposing civil penalties against VEPCO "for making false statements in connection with its application for a license to construct and operate a nuclear power plant." Id. at 1290 (footnote omitted). VEPCO contended, inter alia, that the Commission had misconstrued section 186 of the Atomic Energy Act, 42 U.S.C. § 2236. Although the Fourth Circuit did not engage in an independent determination of its jurisdiction to consider the petition, the Court considered itself vested with such jurisdiction since it reviewed and affirmed the agency's action. However, the Fourth Circuit was reviewing a civil penalty order which emanated from a licensing proceeding. Although such an order presumably was issued pursuant to the Commission's authority under section 234(a), it is literally a "final order entered in any proceeding of the kind specified in subsection (a) of (section 2239)" and thus within the exclusive jurisdiction of the court of appeals. 42 U.S.C. § 2239(b). Again, I must emphasize that in the instant matter the civil penalty order was issued in a section 234(b) proceeding, not a licensing proceeding.
Finally, defendant's reliance on Honicker v. Hendrie, 465 F.Supp. 414 (M.D.Tenn.), appeal dismissed, 605 F.2d 556 (6th Cir. 1979), cert. denied, 444 U.S. 1072, 100 S. Ct. 1015, 62 L. Ed. 2d 753 (1980), is of no avail. That case concerned a district court's dismissal of an action by an individual against members of the NRC in which the plaintiff sought an injunction ordering the NRC to revoke the licenses of all nuclear fuel cycle facilities. The court held that the court of appeals had exclusive jurisdiction to enjoin orders of the NRC issued out of licensing or rule-making proceedings. Again, the distinction is evident. Honicker involved a licensing proceeding, whereas this case concerns a penalty action.
My holding that jurisdiction to entertain this section 234(c) collection action is vested in the district court is buttressed by the jurisdictional grant set forth in 28 U.S.C. § 1355. Section 1355 provides:
The district courts shall have original jurisdiction, exclusive of the courts of the States, of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress.
28 U.S.C. § 1355; Lees v. United States, 150 U.S. 476, 478-479, 14 S. Ct. 163, 163-164, 37 L. Ed. 1150 (1893); United States v. General Motors Corp., 403 F.Supp. 1151, 1152 (D.Conn.1975). It is clear that the court has jurisdiction under this statutory grant, unless, as noted in Lees v. United States, supra, "it (jurisdiction) is in express terms placed exclusively elsewhere." 150 U.S. at 479, 14 S. Ct. at 164. Although 42 U.S.C. § 2239(b) when read in conjunction with 28 U.S.C. § 2342(4) does vest the Court of Appeals with exclusive jurisdiction over numerous NRC determinations, review of section 234 penalty decisions is not one such determination. Accordingly, for the reasons set forth above, I hold that the district court, not the Court of Appeals, has jurisdiction over a section 234(c) collection action.
Since I have held that the district court has jurisdiction over this action, I must now address the court's function in the collection process. Although the parties do not contest the propriety of judicial review, they are diametrically opposed with respect to the scope of review to be employed by the court. Initially, it was the NRC's position that the court need not consider this issue. However, if the court were to address the point, the NRC asserts that "(in) such cases, collection must be preceded (sic ) by a trial de novo, ...; a fact recognized by the Commission in seeking civil penalty authority." NRC's Brief at 15 n.6. However, in a letter to both parties, I requested that the issue of this court's scope of review be briefed. In response to the court's inquiry, the NRC tempered its earlier position and now asserts that "(w)here, as here, the order is based on an adjudicatory hearing guaranteed by the applicable regulations, the proper scope of review is the "substantial evidence' test" under the Administrative Procedure Act, 5 U.S.C. § 706(2)(E). NRC's Supplemental Brief at 6 (footnote omitted).
In contrast to this assertion, RTI argues that the NRC's initial position was correct, i. e., the court must engage in a trial de novo. RTI argues that as a matter of case law, citing United States v. J. B. Williams Co., 498 F.2d 414 (2d Cir. 1974), and construction of analogous statutory authority vested in the Federal Trade Commission, 15 U.S.C. § 45(l ), the Federal Communications Commission, 47 U.S.C. §§ 503, 504, and the Federal Aviation Agency, 49 U.S.C. § 1471, review by the district court is by trial de novo. RTI's Brief at 17-23.
Essentially, the government urges the court to engage in a limited review of an agency's determination, while the defendant asserts that it is entitled to a trial de novo similar to that provided in most other collection actions. For purposes of clarity, I will first pursue the avenue suggested by the government and then engage in a discussion of the defendant's contention.
1. Propriety of Judicial Review.
Judicial review of agency actions is governed by the standards set forth in the Administrative Procedure Act, 5 U.S.C. §§ 701 to 706 (hereinafter referred to as the "APA"). Two sections of the APA are particularly important and merit some detailed discussion. In pertinent part, section 701 states:
(a) This chapter (Judicial Review) applies, according to the provisions thereof, except to the extent that
(1) statutes preclude judicial review; or
(2) agency action is committed to agency discretion by law.
5 U.S.C. § 701(a). The various standards of review to be employed by the court are set forth in 5 U.S.C. § 706. The relevant provisions in this section indicate:
To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall
(2) hold unlawful and set aside agency action, findings, and conclusions found to be
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;
(B) contrary to constitutional right, power, privilege, or immunity;
(C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;
(D) without observance of procedure required by law;
(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court.
In making the foregoing determinations, the court shall review the whole record or those parts of it cited by a party, and due account shall be taken of the rule of prejudicial error.
5 U.S.C. § 706(2). Thus, at this juncture, the issues to be addressed are: first, whether any judicial review is appropriate; and, second, assuming some type of judicial review is proper, what standard of review should be employed. The Supreme Court's decision in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971), establishes the court's method of inquiry.
The first issue existence of judicial review is, of course, governed by the two-pronged test set forth in section 701 of the APA. With respect to the first prong, 5 U.S.C. § 701(a)(1), the Volpe Court explained that there must be a showing by clear and convincing evidence of legislative intent that "Congress sought to prohibit judicial review." 401 U.S. at 410, 91 S. Ct. at 820, A. O. Smith Corp. v. Federal Trade Comm'n, 530 F.2d 515, 520 (3d Cir. 1976); Local 2855, AFGE v. United States, 602 F.2d 574 (3d Cir. 1979). In other words, "(t)he reviewing court must determine whether "Congress has in express or implied terms precluded judicial review or committed the challenged action entirely to administrative discretion.' " Morris v. Gressette, 432 U.S. 491, 501, 97 S. Ct. 2411, 2418, 53 L. Ed. 2d 506 (1977) (quoting Barlow v. Collins, 397 U.S. 159, 165, 90 S. Ct. 832, 836, 25 L. Ed. 2d 192 (1970)).
Since no provision in the Atomic Energy Act expressly precludes judicial review of the Commission's decision under section 234, "it is necessary to determine "whether nonreviewability can fairly be inferred.' " Morris v. Gressette, 432 U.S. 491 at 501, 97 S. Ct. 2411 at 2418, 53 L. Ed. 2d 506 (quoting Barlow v. Collins, 397 U.S. at 166, 90 S. Ct. at 837). This inquiry must address the role played by the commission within "the context of the entire legislative scheme." Abbott Laboratories v. Gardner, 387 U.S. 136, 141, 87 S. Ct. 1507, 1511, 18 L. Ed. 2d 681 (1967).
Resort to the legislative history of section 234 dispels any notion that Congress inferred nonreviewability. When the Joint Committee on Atomic Energy held its hearings on the proposed AEC Omnibus Legislation in 1969 it had before it several bills, one of which was proposed by the AEC. H.R. 9648, S. 1882, 91st Cong., 1st Sess. (1969). During his testimony on the bill, AEC's General Counsel explained that under the provisions in the AEC's proposal regarding collection of civil penalties "an alleged violator is guaranteed an opportunity for a full hearing on the merits in Federal district court before any civil penalty may be collected from him." Hearings Before the Joint Comm. on Atomic Energy on AEC Omnibus Legislation 1969, 91st Cong., 1st Sess. 29-30 (1969) (hereinafter cited as "Hearings on AEC Omnibus Legislation 1969 ") (statement of Joseph F. Hennessey). The AEC also provided written answers to certain inquiries made by the Joint Committee. In one answer, the AEC explained that "(under) this legislation an alleged violator's guarantee of hearing is provided in Federal district courts." Id. at 37-38. Thus, in light of comments before the Joint Committee and with due consideration given to the Supreme Court's mandate that the APA's " "generous review provisions' must be given a "hospitable' interpretation," Abbott Laboratories, 387 U.S. at 141, 87 S. Ct. at 1511, I conclude that Congress did not infer, by its silence on judicial review of section 234 collection actions, that such agency action was nonreviewable. 5 U.S.C. § 701(a)(1).
(Agency) action may be determined to be "committed to agency discretion by law" only when a fair appraisal of the entire legislative scheme, including a weighing of the practical and policy implications of reviewability, persuasively indicates that judicial review should be circumscribed....
A predicate to nonreviewability is that the agency have broad discretionary powers, not merely that its action involve some discretion."
Local 2833, AFGE v. United States, 602 F.2d at 578 (footnote omitted) (emphasis in original).
Although the AEC is vested with substantial discretion to impose civil penalties, it is clear that its discretion is not so broad as to foreclose review. The legislative history referred to above indicates that the AEC itself was not seeking nonreviewable authority. Furthermore, the procedural scheme established in section 234(b) as well as the judicial review provision of 42 U.S.C. § 2239(b), indicate that some review was intended and that there is "law to apply." Accordingly, I hold that civil penalties imposed by the Commission pursuant to its section 234 authority are subject to judicial review. I reject the dictum contained in Drake v. Detroit Edison Co., 453 F.Supp. 1123 (W.D.Mich.1978), espousing a contrary position. In Drake, the court in its concluding remarks indicated that
(it) is clear that the decision to impose penalties or institute proceedings is committed to agency discretion by law. Indeed, such decisions, whether made by administrative agencies or prosecuting attorneys, have historically been deemed to lie at the heart of the executive ...